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<b><i>Legal Tech</b></i> Could Federal Courts' Inherent Powers Upend the New Amendments to Rule 37(e)?
Just as the college football playoffs were supposed to resolve disputes on the proper way to crown a national champion, the recent amendments to the Federal Rules of Civil Procedure that took effect on Dec. 1, 2015 completely overhauled the sanctions portion of Rule 37, and were designed to resolve conflicts on the standards to apply in ordering spoliation sanctions. But just as the college football national championship debate seems far from settled (just ask Baylor and TCU fans last year, or Ohio State, Stanford, or Notre Dame fans this year), one recent decision indicates that neither may be the debate on the standards a federal court can employ in ruling on a spoliation motion.
Who Has Power to Sanction?
The purpose of the amendments to Rule 37(e) were, at least in part, to address parties' increased costs and burdens of overpreservation out of fear of being subject to severe spoliation sanctions from even negligent destruction of evidence. See, Fed. R. Civ. P. 37, Advisory Committee Note to 2015 Amendments. Under the new rule, the most severe sanctions are only available if a party is found to have intentionally deprived the other side of information and the loss of evidence prejudiced the other party. The drafters wanted to create a unified standard for spoliation sanctions, and to give parties comfort that their case wouldn't be dismissed, or an adverse inference wouldn't be given at trial, if the information was not intentionally deleted or it could be recovered from another source. In particular, the drafters were attempting to resolve a circuit split and rejected the Second Circuit's decision in Residential Funding Cop. v. DeGeorge Capital Corp., 306 F. 3d 99, 108 (2d Cir. 2002), which held that an adverse inference instruction could be given for even negligence or gross negligence.
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